Horton v. Or. Health & Sci. Univ.

277 Or.App. 821

373 P.3d 1158

Lori HORTON, as guardian ad litem and Conservator of and for Tyson Horton, a Minor, PlaintiffandLori Horton, individually; and Steve Horton, Plaintiff–Appellants

v. OREGON HEALTH AND SCIENCE UNIVERSITY, a Public corporation; and Marvin Harrison, M.D., Defendants–RespondentsandPediatric Surgical Associates, P.C., an Oregon professional corporation; and Audrey Durrant, M.D., Defendants.

110811209

A155917.

Court of Appeals of Oregon.

Argued and Submitted Jan. 20, 2015.

Decided April 27, 2016.

Maureen Leonard argued the cause for appellants. With her on the briefs were David K. Miller and Robert Wagner.

Janet M. Schroer, Portland, argued the cause for respondents. With her on the brief was Hart Wagner LLP.

Before SERCOMBE, Presiding Judge, and HADLOCK, Chief Judge, and TOOKEY, Judge.

HADLOCK, C.J.

Plaintiffs are the parents of a very young child whose liver was severely damaged during surgery performed by defendants, who—at least for purposes of this appeal—do not dispute plaintiffs' allegation that their negligence harmed the child. The child's mother (“plaintiff mother”) was informed that the child needed an emergency liver transplant because of the damage caused during the surgery, and she subsequently learned that her body tissues “matched” her child's. Four days after the child's initial surgery at Oregon Health & Science University (“OHSU”), medical staff at a different facility transplanted part of plaintiff mother's liver into the child. Plaintiffs subsequently brought this action, contending that plaintiff mother suffered physical and emotional harm as a result of defendant's negligence in performing the original surgery on her child. The child's father (“plaintiff father”) brought a derivative claim for loss of consortium. On defendants' motion, the trial court dismissed the plaintiff parents' claims, determining that the harms to plaintiffs were neither foreseeable results of defendants' negligent surgery on the child nor caused by that initial surgery.¹ We disagree. On the pleaded facts, a reasonable factfinder could determine that the harms to plaintiffs were among the foreseeable risks of defendants' negligent surgery on their child and, further, that the negligent surgery was a cause in fact of plaintiffs' harm, despite plaintiff mother's intervening choice to sacrifice a portion of her liver to save her child. Accordingly, we reverse the trial court's dismissal of parents' claims, and remand.

The pleading pertinent to this appeal is the amended complaint, which included four claims for relief: (1) a claim by plaintiff mother, acting in her capacity as guardian ad litem and conservator for her child, against defendants for negligently harming the child in the initial surgery; (2) a claim by plaintiff mother for her own injuries associated with the subsequent liver-transplant surgery; (3) plaintiff father's claim for loss of consortium with plaintiff mother; and (4) plaintiffs' past and future economic damages associated with caring for their child.

In the second claim for relief, plaintiff mother alleged that her infant child was diagnosed with hepatoblastoma and that defendant OHSU recommended that he have surgery to remove one lobe of his liver. During that surgery, performed when the child was about eight months old, defendants severed blood vessels leading to and from the child's liver, necessitating further procedures, which plaintiffs alleged caused additional damage. Plaintiffs alleged that defendants were negligent in several respects, including utilizing inexperienced surgeons, performing the initial surgery without coordinating with a transplant team, failing to properly identify the vessels upon which they operated, and failing to stop the child's bleeding.

Soon after the child's surgery at OHSU, plaintiff mother alleged, she:

“was advised by physicians attending to her son * * *, including those at OHSU, that because of the injuries he suffered in the * * * surgery at OHSU he would not survive without an emergency liver transplant. She thereafter learned that her body tissues ‘matched’ those of her son and that she was, therefore, an eligible liver donor for her son. Plaintiff [mother], therefore, took the reasonably foreseeable step of donating a portion of her liver to save the life of her son.”

Plaintiff mother also alleged that she suffered a complication from the transplant surgery, which required an additional surgery. Plaintiff mother claimed economic damages associated with the physical injuries from those surgeries, lost income, and severe emotional distress, both from her own surgeries and from learning of the complications associated with her child's surgery at OHSU.

Defendants moved against the amended complaint pursuant to ORCP 21, arguing, among other things, that the second claim for relief should be dismissed for failure to state facts constituting a claim. Defendants argued that plaintiff mother's claim failed as a matter of law for these reasons: she had not alleged that she had a physician-patient relationship with the defendant physicians; she had not alleged facts showing a causal link between defendants' alleged negligence in providing medical care to the child and her own subsequent surgeries; the “foreseeability” standard associated with negligence claims should not apply because defendants' duty was, instead, prescribed by the statutory standard of care for physicians;² and—even if foreseeability principles did apply, “the voluntary donation of an organ to the defendant doctors' patient by a third person cannot be deemed the foreseeable result of malpractice by the defendant doctors during surgery on the defendant doctors' patient.” Defendants also argued that, if the trial court dismissed the second claim for relief, it should dismiss the third claim for relief, that is, plaintiff father's “claim for loss of consortium based on his wife's claim.”

The trial court granted defendants' motion to dismiss the second and third claims for relief. The court did not agree with defendants that the lack of a physician-patient relationship was fatal to plaintiffs' claims. Rather, it dismissed the claims on the ground that, because plaintiff mother had “voluntarily [made] a decision to engage in a surgery to donate an organ,” her claims against defendants were “too far attenuated to have [the] sort of either foreseeability or causal link that * * * is currently required under Oregon law.” Accordingly, the court entered a limited judgment in favor of defendants on the second and third claims for relief. It is that limited judgment from which plaintiffs appeal.³

In this court, plaintiffs argue, as they did below, that the amended complaint adequately stated a negligence claim by plaintiff mother against defendants for harm she suffered as a result of defendants' negligent surgery on the child. To adequately plead a negligence claim, a complaint

“must allege facts from which a factfinder could determine (1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant's conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiffs harm, and (5) that plaintiff was within the class of persons and plaintiffs injury was within the general type of potential incidents and injuries that made defendant's conduct negligent.”

Solberg v. Johnson, 306 Or. 484, 490–91, 760 P.2d 867 (1988). Plaintiffs contend that they adequately pleaded each of those elements.

In response, defendants defend the trial court's reasoning that—given plaintiff mother's choice to donate a portion of her liver to the child—plaintiffs' complaint did not adequately plead the first and fourth elements of a negligence claim, that is, foreseeability and causation. The structure of defendants' argument reflects the oft-quoted holding from Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987) :

“[U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.”

Defendants assert that plaintiff mother's injuries “did not ‘actually result’ from defendants' conduct” and that “nothing ‘befell’ ” plaintiff mother, because “she chose to undergo” the liver-transplant surgery. In their view, no allegations in the complaint could support an opposite determination.

In addition, defendants make an argument that focuses on their characterization of plaintiff mother's claim as one for “medical malpractice.”⁴ Defendants contend that, in such a case, the general Fazzolari/Solberg “foreseeability” paradigm does not apply; instead, they assert, the plaintiff must allege the breach of a duty that runs from the defendant to the plaintiff—a duty that is premised on the existence of a physician-patient relationship. Because plaintiffs have not alleged that plaintiff mother had a physician-patient relationship with defendant Harrison, defendants conclude that plaintiffs' medical-malpractice claim necessarily fails.

In considering the parties' arguments, which all relate to the trial court's dismissal of plaintiff mother's claim for “failure to state ultimate facts sufficient to constitute a claim,” ORCP 21 A(8), we review “for legal error, taking as true all well-pleaded factual allegations, and giving plaintiff the benefit of all reasonable inferences that can be drawn from those facts.” Nationwide Ins. Co. of America v. TriMet, 264 Or.App. 714, 715, 333 P.3d 1174 (2014) (internal quotation marks omitted).

We begin with, and quickly dispose of, defendants' contention that a medical-malpractice claim must always be premised on the existence of a special...